1 Ga. App. 582 | Ga. Ct. App. | 1907
On May 16, 1905, by a written contract, made between Wright and Floyd county, through its county commissioners, and reciting, that said Wright is the owner of the lands on both sides of the Armuchee creek at the old J ones mill in said county, including the mill and water rights, and the county is the owner of a bridge across the creek at or near said mill, on the Dalton, public road; that, it being necessary to repair said bridge by substituting two stone or concrete piers for the wooden bents now in use, one pier to be located at the north end and the other at the south end of said bridge, and Wright desiring to build his mili-dam and race anew at or near said bridge and to use said bridge for bulkheads or stays for the same, it was agreed, that Wright, at his expense, would build one of the piers, and the county, at its expense, the other, and that Wright should also build, at his expense, any additional concrete or stone pier, or work, which might in the discretion of either party be required to properly adjust the contemplated dam and race to the piers and to their use as safe and permanent supports to the bridge; all the work to be done according to the county’s plans and specifications and subject to its approval. As a further consideration it is recited that the said Wright “hereby sells and forever quitclaims to [the county] the right to "keep and maintain said bridge where now located, and to rebuild or replace the same as often as may be necessary in the future; also the right of way for a public rqad 30 feet wide on both sides of said creek, and along the line of the road leading through his land to and from said bridge.” On the county’s part, the contract states that it “agrees to allow Wright the privilege to construct his mill-dam at or near said bridge, and to make ,use of the piers before mentioned, as bullcheads or stays to his dam, the work to be done, as before stated, under the direction and subject to the approval of the county authorities,” and that “this instrument shall operate as a deed of conveyance as far. as applicable.” With the consent of Wright and at his instance, the county, after building the pier which they were to build, also-constructed the one which Wright was to erect. The cost of building the second pier was $517.10; and for this sum the county
By the State constitution, article 11, sec. l,.par. 1 (Civil Code, §5924), “Each county shall be a body corporate, with such powers and limitations as may be prescribed by law;” and by article 6, section 19, paragraph 1 (Civil Code, §5879), “The General Assembly shall have power to provide for the creation of county commissioners in such counties as may require them, and to define their duties.” The constitution of 1868 contained a similar provision as to county commissioners. It has been held, under these sections, that neither counties nor county commissioners possess any powers unless expressly conferred by, or fairly to be implied from, such statutes as may be passed in relation thereto. Albany Bottling Co. v. Watson, 103 Ga. 503. It is therefore necessary to consider what statutes have been passed upon this subject. By act of December 13, 1871 (Ga. Laws of 1871-2, p. 225),.the board of county commissioners of Floyd county was established. By the fourth section of this act it is provided: “That said board shall have exclusive jurisdiction, when sitting for county purposes, over the following subject-matters: in governing and controlling all property of the county, as they may deem expedient, according to law, . . in establishing, altering, and abolishing all roads, bridges, and ferries, in conformity to law.” The fifth section of the same act confers upon them all the powers possessed by the justices of the inferior court prior to the adoption of the constitution of 1868, so far as related to„county matters; and this, by reference, gave them the jurisdiction “to appbint the places for the erection of public bridges, county ferries, turnpikes, and causeways, and to
We have somewhat repressed the view of this case, that the contract taken in its entirety merely amounts to a conditional dedication or sale by Wright, the landowner, to the county of the easement or right to erect the bridge, because there was some slight question made in the record as to whether the county did not already have the easement, by prescription. If it is permissible to view the contract as a dedication on condition, it will be easy to cite authority to sustain it. In this respect the New York case of Hughes v. Bingham, 17 L. R. A. 454, is in point. The landowner in that case dedicated a highway on condition that it should be used for seven months in each year, and closed for five. In sustaining'the dedication and the condition the court says: “The capacity to take a grant in fee for highway purposes must, upon every just principle of construction, as well as upon reason, growing out of the necessity of the case, be deemed to include the power and capacity to take an interest less than the fee, or upon such conditions as are inserted in the deed.” We may also cite the Iowa case of Agne v. Sutsinger, 36 L. R. A. 701, in which it was held that when a landowner granted the easement, for a highway on condition that he might have the right to join his fences to a bridge, which it would be necessary to build over a creek, so that his cattle might pass under, the road authorities could not disre
We can not, in light of the record, hold that the contract is contrary to public policy, for that the erection of the dam would tend to injure and impair the usefulness and safety of the bridge for public travel; because evidence was submitted on this issue, and the trial court found to the contrary. While we do not think that public policy would allow .the county authorities to barter away the safety of the highway, still, in the nature of things, much must be left to the discretion of the local authorities in determining what will or what will not be safe. We hardly think that the mere fact that the public convenience might be slightly discommoded in times of freshets and unduly high water would be sufficient ground for declaring the contract void. The inconvenience must be substantial. Nor is the fact that the dam may cause -it to be more expensive to maintain the bridge a reason for • declaring the contract invalid. This feature relates to interest of the county in the bridge, as distinguished from that of the public; and as to such interest the county commissioners have the power to contract. This distinction is brought out in the ease of Justices v. Plankroad Co., 9 Ga. 486, as follows: “The easement in a public road is a property, in equity, belonging to the county at whose expense'it is constructed. It is subject to use by the public at large — hence, as I before have said, it appertains to the public. Yet this is not inconsistent with the idea of an equitable interest or property in the county. The public use may be considered as a limitation upon the property. The interest which a county has in a public highway springs equitably out of the fact that that county, and not the whole public, have paid the costs of construction. The right to lay out and open the road is derived from the inferior court, acting
We have been led into this lengthy discussion of this case not only by the able and earnest arguments which were presented pro and con, but also on account of the public character of. the interesting questions involved; and, after considering the matter in its various phases, we hold that the contract is legal and that the judgment rendered is correct.
Judgment, on the main hill of exceptions, affirmed; cross-hill dismissed.